Nadine StrossenProfessor of Law, New York Law School
President, American Civil Liberties Union (ACLU), 1991-2008

Many critics of the health care law's minimum coverage provision have invoked libertarian rhetoric, including their chosen, intendedly stigmatizing, label for it: "the individual mandate." They have trotted out a "parade of horribles," arguing that if the federal government can enforce this provision, then it could also subject us to countless intrusive regulations. "Broccoli" now connotes this alleged government power even to dictate what we ingest into our own bodies - as invoked several times during Tuesday's argument.

As a civil libertarian, I would be delighted if the challenge to the minimum coverage provision actually advanced individuals' rights to remain free from unwarranted government regulation. But Tuesday's arguments underscored that this is not the concern of either the challengers or the Justices who indicated support for their position.

For one thing, the challengers and Justices alike unhesitatingly recognized that the very same assertedly intrusive, unjustified government compulsion upon individuals to enter into commerce (as critics have characterized this provision) could be enforced by any state government without any constitutional problem. I fully concur with this constitutional analysis. State legislatures do have a broad "police" power to enact laws designed to promote health and welfare.

In terms of individual liberty, however, it doesn't matter which level of government violates a fundamental freedom. Therefore, if the minimum coverage provision constituted such a violation, presumably the challengers would have argued that the Constitution prevents it from being imposed not only by the federal government, but also by the states. Likewise, the Supreme Court has struck down health laws that have in fact infringed individual liberty - for example, the right to be free from forced medical treatment - regardless of whether those were state or federal laws.

Far from defending individual liberty and freedom of choice against Big Brother-type government, during Tuesday's argument, the challengers concurred that Congress could constitutionally have imposed the very same wholly centralized, nationalized health care system that during the Congressional debates was deemed too socialistic even by Democratic centrists. As Solicitor General Donald Verilli commented: "Congress chose to . . . rely on market mechanisms and . . . a method that has more choice than would the traditional Medicare/Medicaid type model; and so it seems a little ironic to suggest that that counts against it."

Justice Ginsburg likewise noted how "odd" the challengers' position is, in recognizing "that the government can take over the whole thing . . . but if the government wants to . . . preserve private insurers, it can't do that." To which attorney Michael Carvin (representing non-state challengers) responded: "I don't think the test of a law's constitutionality is whether it more adheres to the libertarian principles of the Cato Institute or the statist principles of someone else."

To be sure, on this core principle of constitutional doctrine, I fully agree with Mr. Carvin. Ever since the New Deal, the Court has embraced Justice Oliver Wendell Holmes' famous dissent in the discredited 1905 Lochner decision, which had upheld a long-since-rejected "liberty of contract" right to remain free from government regulation of economic matters, including regulations specifically designed to promote public health. Holmes' celebrated opinion seems prophetically pertinent to the constitutionality of the minimum care provision, especially since its detractors have stressed that provision's "novel" nature (including during Tuesday's argument):

"[A] Constitution is not intended to embody a particular economic theory, whether of paternalism . . . or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions . . . novel , and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution."

Specifically concerning the New York law at issue in Lochner, Holmes concluded that the Court should uphold it because - in words that could apply fully to the federal law now at issue -- "[a] reasonable man might think it a proper measure on the score of health."

Since 1937, the Court has consistently espoused Justice Holmes' prescribed judicial restraint concerning federal and state legislation alike, deferring to legislative decisions about economic or social policy matters. It has eschewed the Lochner majority's activist approach, serving as a "Super-Legislature" that second-guessed such policy choices.

Another irony in the current debate is that many avowed conservatives are abandoning the Holmesian judicial restraint to which they usually pay homage, and instead are advocating judicial micro-management of Congress's chosen means for pursuing the health care law's concededly compelling goals. Richard Epstein's opening post endorsed such activistic judicial review, and it was also evidenced in many comments from the Court's so-called "conservative" wing during Tuesday's argument, which often sounded more like a policy debate than a constitutional law discussion.

In short, just as opponents of the health care law are not championing individual liberty against Big Government, they likewise are not championing limited federal power. To the contrary, they advocate enlarged federal judicial power.